Lawful Permanent Residence For High-Skilled Workers

America’s competitors for talent typically do not have quotas and country limits that prevent high-skilled individuals from gaining permanent residence. In most cases, an individual can become a permanent resident after working in a country for a set period of time, typically five years, and passing a test similar to the U.S. naturalization exam. Employers and employees desire predictability, and the immigration systems in other countries offer much clearer paths to the equivalent of the U.S. green card.

The State of Immigration

America’s competitors for talent typically do not have quotas and country limits that prevent high-skilled individuals from gaining permanent residence. In most cases, an individual can become a permanent resident after working in a country for a set period of time, typically five years, and passing a test similar to the U.S. naturalization exam. Employers and employees desire predictability, and the immigration systems in other countries offer much clearer paths to the equivalent of the U.S. green card.

Employers support policies that allow valued high-skilled employees to stay and work for a company long term. In the United States, employers sponsor individual employees for permanent residence (a green card). That process is marred by bureaucratic procedures, low quotas and per-country limits, leading to long waits and much uncertainty. For most skilled positions employers must obtain from the U.S. Department of Labor “labor certification,” which is considered an artificial test of the labor market that requires advertisements to demonstrate that no similarly qualified U.S. worker is available. Then, an employer files an application for permanent residence on behalf of the foreign national. Legal and government fees, as well as other costs for sponsoring a high-skilled foreign national from H-1B status to permanent residence, could run as high as $50,000, according to the Council for Global Immigration and the Society for Human Resource Management.47

Depending on the category and country of origin, the wait times for high-skilled immigrants in the United States can be significant, due to a 140,000 annual quota (half of which is used by dependents) and annual limits on the number of people per country who can immigrate under an employment category. The result: A high-skilled foreign national from India, for instance, could wait a decade or even longer for a green card. High-skilled immigrants from China have experienced wait times only somewhat shorter than those of Indians, while individuals sponsored by U.S. employers from other countries can expect to wait six years or more in the most common employment-based preference category in the U.S. system. These long wait times create great uncertainty and discourage highly skilled individuals from remaining in the United States to build their careers.

Australia

The process for high-skilled individuals to obtain permanent residence is easier and more straightforward in other advanced countries. In Australia, workers can transition from a 457 temporary visa to permanent residence after two years “in the same occupation with their nominating employer who wants to offer them a permanent position in that occupation.”48 That can be done through the Employer Nomination Scheme.

In addition, under the Regional Sponsored Migration Scheme visa, an individual can receive permanent residence if “nominated by an approved Australian employer for a job in regional Australia.”58

While the points-based system in Australia garners attention, it is basically irrelevant for employers, which is important considering some in America advocate that the United States adopt such a system. “The points system is not at all important for corporate immigration in Australia,” said Tim Denney with Berry Appleman & Leiden in Sydney. “The points system comes into play when an individual seeks to migrate to Australia and does not have a business operating in Australia willing to sponsor him or her upfront for either a temporary work visa or permanent residence.”59 The Direct Entry stream for those who have not worked before (or have worked only briefly) in Australia and the Skilled Nominated category are permanent residence visas for “points-test skilled workers who want to work and live in Australia.”60

Germany

Workers possess options to obtain permanent residence in Germany, noted Stefan Lenz, head of the legal department at ICUnet.AG. If an individual has a Blue Card, then he or she can apply for permanent residence after 33 months or, in some cases, after only 21 months if he or she demonstrates a high-level knowledge of the German language.61 A second option for permanent residence is for an individual to work in Germany for five years, pay into Germany’s retirement system or a comparable insurance institution, achieve proficiency in the German language, and demonstrate sufficient knowledge of Germany’s “legal and social order.”62

Canada

In Canada, increasing numbers of people are gaining permanent residence by transitioning from a temporary visa. An individual can transition to permanent residence within one to two years of applying, and (according to the Canadian government) the new Express Entry system introduced in January 2015 may shorten that time. The program will target a six-month processing period from the date of filing for eligible applicants in and outside Canada, although it is unclear if that goal can be met.63

Workers can gain permanent residence through work in the Canadian provinces via the Provincial Nominee Programs. “In the last ten years, the Provincial Nominee Programs have become the second largest source of economic immigration to Canada. In 2011, for example, 38,000 provincial nominees (including their spouses and dependents) were admitted to Canada, an almost six-fold increase since 2004,” according to Citizenship and Immigration Canada.64 In most cases, the provincial nominees were first admitted based on local employers offering jobs.

The Canadian government introduced the Express Entry system in January 2015 to act as a “filter” that could give priority for permanent residence to individuals employers have already hired (or wish to hire) in Canada, according to David Crawford, an attorney with Fragomen Worldwide in Toronto.65 At the federal level, Canada operates three programs for permanent residence related to employment: the Federal Skilled Worker Program, Canadian Experience Class and the Federal Skilled Trade Program. (All the provinces also operate Provincial Nominee Programs.) Individuals seeking permanent residence through one of these categories would express an interest online, and the Canadian government would “invite” the most qualified people to apply within the government’s overall target number.

A 1,200-point scale would be used, but an individual with a job offer or sponsorship, including through the Provincial Nominee Program, would be awarded half the points and be given priority over other people. As The Economist explained, “Those with the highest scores will be quickly invited to apply for permanent residency under one of three economic entry programs. The rest remain in a pool from which the government and eventually employers can pick.”66

Legal experts caution it may be too early to determine the impact of the new Express Entry program. “We hope that the Express Entry program is going to change things for the better,” said Audrea Golding, partner at Fragomen Worldwide in Canada.67 Peter Rekai, an attorney with Rekai LLP in Toronto, warns that to prevent the federal government from exceeding its “target number,” people who would have qualified under the existing immigration programs and gained permanent residence will now have to compete against each other in Express Entry.68 Importantly, those who fail to gain permanent residence in a given year would have to start the process over again the following year, rather than be placed on a waiting list as in the past.

The U.K.

In the U.K., most employees on temporary visas, except for intracompany transferees, are eligible to attain permanent residence after five years of residing and working in the country. After meeting the residency requirement, individuals must pass a test demonstrating knowledge of life in the U.K. A year later, an individual can apply to become a British citizen.

France

Lawful permanent residence in France can be obtained after residing in the country for five years, such as while working on an EU Blue Card or as a high-skilled foreign national, although intracompany transferees are not eligible to change their status directly to permanent residence. Individuals must show they have paid their bills and taxes and do not risk becoming a public charge.

Hong Kong

The system for obtaining permanent residence in Hong Kong is also straightforward. There is no annual numerical limit on permanent residence in Hong Kong. After seven years of “continuous residence” an individual can apply for Right of Abode, similar to green card status in the United States. There were 64,804 such applications approved in 2012 and 68,802 in 2013.69 A person is likely to be rejected only if there is doubt over the “continuous” nature of the residence through, for example, physical absences from Hong Kong, note attorneys.

Singapore

Permanent residence has become more difficult to obtain in Singapore due to new policies. One can apply for permanent residence within a month of entering; however, individuals must prove why their permanent residence would benefit Singapore. Immigration firms advise residing in the country at least two years prior to filing. According to Christina Karl, managing director of Asia, Berry Appleman & Leiden, Singapore does not publish explicit quotas for permanent residence. Attorneys believe approvals, which can take up to 18 months, now hinge on the government addressing the balance of nationalities and the specific skills an individual can bring to Singapore. The lack of transparency on permanent residence in Singapore would concern Americans and others used to clearly stated criteria.

Switzerland

A foreigner in Switzerland who is an EU national can obtain permanent residence after residing in the country for five years. Non-EU nationals can become permanent residents after living in Switzerland for 10 years. After 12 years of residence (total), one can usually obtain Swiss citizenship.

Japan

“The biggest difference between Japan and the United States is Japan has no system at all for persons to immigrate directly to the country,” said attorney Yoshio Shimoda. “The person must be in lawful status for 10 years in Japan before becoming a permanent resident.”75 The time period is three years if married to a Japanese citizen or if entering through the points-based system. A related problem is that Japan does not allow dual nationality, which means to become a citizen in Japan one must relinquish citizenship rights in other countries. “That would discourage a lot of people,” said attorney James Dougherty.76 There is also a sense among experts that if immigration were to increase in Japan, then authorities would act to limit it.

47. Council for Global Immigration and the Society for Human Resource Management (2013), Navigating the U.S. Employment-Based Immigration System.

48. Australian Government Department of Immigration and Border Protection.

58. Australian Government Department of Immigration and Border Protection.

59. Interview with Tim Denney.

60. Australian Government Department of Immigration and Border Protection. Under Skilled Nominated, an individual must be nominated by an Australian state or territory government agency.

61. The level of German must comply with the B1 Level. In the case of either 21 months or 33 months, applicants must pay into Germany’s retirement system or comparable insurance institution and demonstrate sufficient knowledge of the country’s “legal and social order.”

62. Interview with Stefan Lenz.

63. It does not include the time individuals will need to gather documents to prove their experience and qualifications for eligibility.

About the Report

Business Roundtable selected the evaluated countries based on five criteria:

Worldwide university rankings;

Per-capita income;

Gross domestic product growth rate;

Net migration rate; and

Research and development investment.

After comparing each advanced economy relative to the five criteria, the top 10 countries (including the United States) were selected for the study: Australia, Canada, France, Germany, Hong Kong, Japan, Singapore, Switzerland and the United Kingdom (U.K.). Not coincidentally, these are the countries with which the United States competes most for foreign talent, particularly in science and technology fields.